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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT …

UNITED STATES DISTRICT COURTSOUTHERN DISTRICT OF FLORIDACASE NO. 11-62547-CIV-SCOLA/ROSENBAUMC. JOSEF ROSEN,Petitioner, CORPORATIONINTERNATIONAL, et al., ON RESPONDENTS MOTION TO STRIKE DECLARATIONThis matter is before the COURT on Respondents Motion to Strike Declaration of C. JosefRosen [ 17], referred to me by the Honorable Robert N. Scola, Jr. [ 19]. The COURT hasreviewed Respondents Motion, the filings supporting and opposing the Motion, and the othermaterials in the case file. For the reasons discussed below, Respondents Motion to Strike is grantedin part and denied in October 28, 2011, Petitioner C. Josef Rosen filed a Petition to Compel Arbitration( Petition ) in the Circuit COURT of the 17th Judicial Circuit in and for Broward County, 1-1.

united states district court southern district of florida case no. 11-62547-civ-scola/rosenbaum c. josef rosen, petitioner, v. service corporation international, et al.,

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Transcription of UNITED STATES DISTRICT COURT SOUTHERN DISTRICT …

1 UNITED STATES DISTRICT COURTSOUTHERN DISTRICT OF FLORIDACASE NO. 11-62547-CIV-SCOLA/ROSENBAUMC. JOSEF ROSEN,Petitioner, CORPORATIONINTERNATIONAL, et al., ON RESPONDENTS MOTION TO STRIKE DECLARATIONThis matter is before the COURT on Respondents Motion to Strike Declaration of C. JosefRosen [ 17], referred to me by the Honorable Robert N. Scola, Jr. [ 19]. The COURT hasreviewed Respondents Motion, the filings supporting and opposing the Motion, and the othermaterials in the case file. For the reasons discussed below, Respondents Motion to Strike is grantedin part and denied in October 28, 2011, Petitioner C. Josef Rosen filed a Petition to Compel Arbitration( Petition ) in the Circuit COURT of the 17th Judicial Circuit in and for Broward County, 1-1.

2 In the Petition, Rosen, formerly employed by Respondents as a funeral director, seeksto compel Respondents to arbitrate Rosen s claims for unpaid overtime wages. See id. at 4-5. Rosenalleges that when he began working for Respondents in September 2007, he executed a writtenagreement requiring (with certain inapplicable exceptions) that the parties arbitrate any disputesarising from Rosen s employment. See id. Although Rosen contends that his signed arbitrationCase 0:11-cv-62547-RNS Document 27 Entered on FLSD Docket 02/03/2012 Page 1 of 8 Rosen s Petition also attaches other materials that, according to Rosen, show that his alleged1arbitration agreement exists and is enforceable against further contend that (1) even if Rosen had executed a written arbitration2agreement, the Respondents who did not sign that agreement could not be bound by it.

3 And (2) Rosenhas released, in exchange for a cash payment, all claims arising from his employment, includingclaims for unpaid is in the custody of his former direct employer, see id. at 5 , he has attached to hisPetition an arbitration agreement signed by another employee of that company. See id. at claims that this agreement is substantially similar to the Agreement Rosen and Respondentsentered into, id. at 4, and that it demonstrates that Rosen s employer routinely required itsemployees to sign Arbitration Agreements .. as a condition of employment. Id. at 5 & , Rosen asserts that he has served a demand for arbitration on Respondents but that theyhave not responded to that demand.

4 See id. Rosen therefore requests an order compellingarbitration, in accordance with the parties alleged agreement and as required by the FederalArbitration Act. See id. at 6-7; 9 2, removed Rosen s action to this COURT on the ground that the claims Rosen seeksto arbitrate are based on the federal Fair Labor Standards Act, 29 201 219. See 1at 3. Respondents then filed an Answer and Response opposing Rosen s Petition. See 6. Inthat filing, Respondents deny that Rosen ever executed a written arbitration agreement in connectionwith his employment. See id. at 2-4. Attached to Respondents filing is a declaration from acompany paralegal stating that Rosen s employment file does not contain the alleged arbitrationagreement.

5 See December 14, 2011, Rosen filed a Reply in support of his Petition. See 8. Tofurther support his claim that he executed a written arbitration agreement with Respondents, Rosenattached a declaration of his own. See id. at 11-13. In the first paragraph, Rosen STATES that he hasCase 0:11-cv-62547-RNS Document 27 Entered on FLSD Docket 02/03/2012 Page 2 of 8 Rosen notes in his Reply that a written arbitration agreement need not be signed in order to3be enforceable under the Federal Arbitration Act. See Caley v. Gulfstream Aerospace Corp.,428 1359, 1368-70 (11th Cir. 2005). Nevertheless, Rosen claims that the agreement he enteredinto with Respondents was, in fact, signed by the personal knowledge of the facts set forth in this Declaration and that he is competent to testifyas to the matters set forth herein.

6 Id. at 11, 1. Further, Rosen makes several assertions concerningthe existence of a written arbitration agreement between Rosen and his direct respondents inability to locate this document, it is my understandingthat I did, in fact, enter into an arbitration agreement with or near the beginning of my employment with SCI, I received a largeamount of paperwork regarding my employment with SCI, and I was requiredto sign certain paperwork as a condition of my understanding is that one of the documents I was required to sign as acondition of my employment with SCI was an arbitration was my understanding that all employees were required to sign the samestandard paperwork, including the arbitration agreement, as a condition ofemployment with at 12, now move to strike Rosen s declaration, arguing that it is not based onpersonal knowledge, but rather speculation; contains conclusory statements rather than statementsof fact; and, contains hearsay.

7 17 at 2, 4. In particular, Respondents point out that Rosen repeatedly asserts his understanding of alleged facts which are nothing more than conclusorystatements unsupported by actual evidence or personal knowledge. Id., 5. For these reasons,Respondents maintain that Rosen s declaration is procedurally defective as a matter of law andshould be stricken from the record in this matter. Id., analyze properly Respondents Motion to Strike, it is first necessary to understand thecontext in which the Motion arises. Generally, under the Federal Arbitration Act, a DISTRICT courtCase 0:11-cv-62547-RNS Document 27 Entered on FLSD Docket 02/03/2012 Page 3 of 84must compel arbitration if the parties have agreed to arbitrate their dispute.

8 Chastain v. Robinson-Humphrey Co., 957 851, 853-54 (11th Cir. 1992) (citing 9 2, 3). However, partiescannot be forced to submit to arbitration if they have not agreed to do so. Id. at 854. Therefore, the first task of a COURT asked to compel arbitration of a dispute is to determine whether the partiesagreed to arbitrate that dispute. Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 , 626 (1985).The Federal Arbitration Act outlines the procedures for addressing this question:The COURT shall hear the parties, and upon being satisfied that the making of theagreement for arbitration or the failure to comply therewith is not in issue, the courtshall make an order directing the parties to proceed to arbitration in accordance withthe terms of the agreement.

9 If the making of the arbitration agreement or thefailure, neglect, or refusal to perform the same be in issue, the COURT shall proceedsummarily to the trial thereof..9 4. Thus, to obtain a trial before the DISTRICT COURT on whether the parties agreed toarbitrate, the party seeking to avoid arbitration must show that the existence of a binding arbitrationagreement is in issue. See Chastain, 957 at 854-55. To make this showing, the partyopposing arbitration must unequivocally deny that an agreement to arbitrate was reached and mustoffer some evidence to substantiate the denial. Wheat, First Secs.

10 , Inc. v. Green, 993 814,817 (11th Cir. 1993) (quoting Chastain, 957 at 854). That evidence must be enough .. tomake the denial colorable. Chastain, 957 at deciding whether there is sufficient evidence to require a trial on the existence of anarbitration agreement, the COURT should apply the standard for summary judgment. See MagnoliaCapital Advisors Inc. v. Bear Stearns & Co., 272 F. App x 782, 785 (11th Cir. 2008) (per curiam).Accordingly, only when there is no genuine issue of fact concerning the formation of the[arbitration] agreement should the COURT decide as a matter of law that the parties did or did not enterinto such an agreement.


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